Citation Nr: 9825849
Decision Date: 08/27/98 Archive Date: 07/27/01
DOCKET NO. 95-15 349 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and a therapist
INTRODUCTION
The veteran had active service from April 1979 to April 1989.
This matter is initially before the Board of Veterans'
Appeals (the Board) on appeal of a January 1995 rating
decision from the Boise, Idaho, VARO. In March 1997, the
Board reopened found the claim of entitlement to service
connection for PTSD and remanded the case for de novo
consideration.
The Boise VARO readjudicated claim of service connection for
PTSD in late 1997. Thereafter, the veteran relocated and the
Cleveland, Ohio VARO issued a supplemental statement of the
case in April 1998 that addressed only PTSD after review of
several statements submitted on behalf of the veteran. The
case has been returned to the Board for appellate review.
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Veterans Appeals
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See The
Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-
446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101
(West Supp. 1997) (Historical and Statutory Notes). In
addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
The veteran contends, in essence, that PTSD which has been
attributed to pre-service stressors, such as childhood abuse,
was aggravated in service as a result of persistent sexual
harassment and witnessing a fatal automobile accident.
The Board referred issues of entitlement to service
connection for dissociative identity disorder and depression
to the RO for further action as appropriate. Those issues
were not included in the readjudicated claim by the Boise
VARO in late 1997. In light of the additional evidence
received since the claim of service connection for a nervous
disorder to include PTSD was initially adjudicated by the RO
in 1991, these matters are more appropriately viewed as
inextricably intertwined with the issue on appeal. Harris v.
Derwinski, 1 Vet. App. 180 (1991).
The Board has reviewed the development of the claim on remand
in light of the recent decisions of the United States Court
of Veterans Appeals (the Court) in Miller v. West, No. 97-601
(U.S. Vet. App. July 24, 1998), and Stegall v. West, No. 97-
78 (U.S. Vet. App. June 26, 1998), which are applicable to
this appeal.
The Board observes that as requested in the 1997 remand, the
RO contacted the veteran for the names and addresses of any
medical care providers who treated her for any psychiatric
disability prior to, during and subsequent to her period of
military service. In responding, she listed treatment
providers since 1988. Thus, she reported no treatment prior
to service.
The RO was also asked to obtain a complete record of
treatment from all identified sources unless such records had
previously been associated with the claims file. The RO
contacted all treatment providers mentioned by the veteran
and records were obtained for her 1994 admission to CPC
Intermountain Hospital and a 1990 admission to The Sheppard
and Enoch Pratt Hospital. N. York, a licensed professional
counselor provided a copy of a previously submitted report
and information of the appellant's more recent treatment
status in a 1997 statement which mentioned major depressive
disorder among the current psychiatric diagnoses for the
appellant. J. Baggett, L.C.S.W., who had previously
submitted a summary of treatment since late 1988 was
contacted again but apparently did not respond to the RO
inquiry. No records were available from Anne Arundel Assault
Crisis Center where the veteran reported treatment from late
1987 to early 1988.
The RO did not obtain a complete record of treatment from N.
York or J. Baggett. Information obtained in initial
interviews or in other sessions that might shed light on the
nature and extent of preservice symptoms or psychiatric
history would be probative evidence in the determination of
whether a psychiatric disability of any nature preexisted
service. VA regulations require clear and unmistakable
evidence of preexisting disability to rebut the presumption
of soundness. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304.
The veteran's service medical records, including entrance and
discharge examinations in March 1979 and February 1989,
respectively, are unremarkable for any report of a
psychiatric disorder or treatment other than a clinical
record reference in July 1988 to her self referral for sleep
problems after a motor vehicle accident. She was seen at the
outpatient psychology department of Bethesda Naval Hospital
and it was reported at the time that her "case file" was
maintained in the psychology department. The service medical
records do not include any "case file" information for the
veteran. Such records would obviously be relevant to an
informed determination in this case. Another entry initially
made on the March 1979 entry medical evaluation and repeated
in the service medical records is more problematic. On the
March 1979 examination medical history it was reported that
the veteran was allergic to Compazine, Thorazine and Tigan.
According to the current Physicians' Desk Reference, the
indications for usage of Thorazine and Compazine are severe
nausea and vomiting and management of the manifestations of
psychotic disorders. Tigan is indicated for the control of
nausea and vomiting. The examination report did not indicate
current use of any of these medications or why they had been
prescribed previously. However, the Board believes that the
veteran should clarify the circumstances that determined the
need for Thorazine, Compazine or Tigan prior to service and
who prescribed the medication. It was also noted in the
medical history that she had been rejected for military
service in 1975 because of excess weight. There are no
service department medical records for this time on file.
In August 1991, two examiners conducted a VA psychiatric
evaluation. One examiner specifically stated that if the
veteran was suffering from PTSD, it undoubtedly related to
events of her earlier childhood but reported diagnoses of no
evidence of PTSD, borderline personality disorder, multiple
personality disorder and chronic and severe depression. The
second examiner concluded that the most appropriate diagnosis
was a severe personality disorder. That examiner
specifically ruled out diagnoses of depression and PTSD, but
stated that he did not feel qualified to assess the
possibility of a diagnosis of multiple personality disorder.
Two VA examiners in 1997 reported the diagnostic impression
of PTSD from childhood abuse which preexisted her entering
the service. They concluded that the experience of a car
wreck as described resulted in an exacerbation of PTSD
symptoms in the service but that the current severity of her
PTSD symptoms were a natural course of childhood PTSD and
unrelated to her military experience. The examiners stated
they were unable to make a determination with respect to any
other psychiatric disorder that she may have. The basis for
the determination that PTSD preexisted service is unclear
since the record does not include any competent evidence of
preexistence, although it clearly shows events that could
support the diagnosis. Further, the examination request did
not indicate whether the claims folder was provided to the
examiners nor does the examination report. The Board
observes that in Miller, the Court held that a determination
of preexistence must be supported by contemporaneous clinical
evidence or recorded history and that a bare conclusion, even
one written by a medical professional, without a factual
predicate in the record does not constitute clear and
unmistakable evidence sufficient to rebut the statutory
presumption of soundness [under 38 U.S.C. § 1111 and
38 C.F.R. § 3.304(b)]." The determination must be whether
PTSD was manifested prior to service clearly and
unmistakably.
As regards other psychiatric disorders, the record does show
a diagnosis of bipolar disorder, depressed type during the
first postservice year and more recently in 1997 N. York
reported major depression among the veteran's current
psychiatric diagnoses. The recent VA examination did not
address disorders other than PTSD. However, since the claims
appear inextricably intertwined, a comprehensive assessment
is necessary for an informed determination.
Therefore, consistent with VA's duty to assist the veteran in
the development of facts pertinent to her claim under
38 U.S.C.A. § 5107(a) and the Court's decisions in Stegall
and Miller, the case is REMANDED to the RO for the following:
1. The RO should contact the service
department and request that it conduct a
search for any additional service medical
records for the veteran. Of particular
interest are any records, referred to in
July 1988 as her "case file,"
apparently maintained at the Bethesda
Naval Hospital Psychology Department.
The RO should also request that the
service department provide all available
records, administrative or medical, that
relate to the veteran's unsuccessful
attempt to attempt to enter the service
in 1975. The RO should carefully
document in the claims file all pertinent
correspondence.
2. The RO should once again contact the
veteran and request that she provide the
names and addresses of any medical care
providers who treated the veteran for any
psychiatric disability or other
disability prior to her period of
military service and who prescribed
either Thorazine, Compazine or Tigan for
her symptoms. She should be asked to
explain the circumstances under which her
allergy to these medications was
discovered.
3. The RO should again contact N. York
and J. Baggett and request that each
provide a copy of all treatment records
for the veteran. They should be advised
that their treatment summaries, though
appreciated, did not include complete
clinical records which the Board finds
essential given the circumstances of this
case. N. York should also be asked to
explain her May 1995 statement that PTSD
symptoms "were in place" at the time
the veteran entered service.
4. After any additional records obtained
pursuant to the above have been
associated with the claims file, the
veteran should be afforded a
comprehensive VA psychiatric examination,
by a board of two psychiatrist, if
possible, to determine the current nature
and etiology of her existing psychiatric
disorders. The claims folder and a
separate copy of this remand must be made
available to the examiners for review
before the examinations. The examiners
are specifically requested to provide an
opinion as to the following: 1) whether,
based on a review of the veteran's
psychiatric history, and including
consideration of developmental stressors,
the in-service automobile accident and
claimed sexual harassment, and any post-
service economic and/or other personal
stressor(s), a diagnosis of PTSD can be
confirmed or ruled out; and, if a
diagnosis of PTSD is confirmed, 2)
whether PTSD symptoms/manifestations pre-
existed the veteran's entrance into
military service, and if so, 3) whether
the verified in-service stressors
resulted in any increase in the severity
of PTSD, or whether any increase in
severity is otherwise attributable to the
natural progress of the disorder and/or
stressor(s) unrelated to her period of
military service. The existence,
etiology and approximate onset of all
other psychiatric disorders, specifically
major depression or bipolar disorder,
should also be identified. The examiners
should state any inability to make a
determination with respect to any of the
above questions. All necessary tests and
studies should be accomplished. The
rationale for all conclusions should be
provided.
5. After the development requested above
has been completed the RO should
readjudicate the veteran's claim of
entitlement to service connection for
PTSD. The RO should also adjudicate the
inextricably intertwined issue of service
connection for dissociative identity
disorder and depression to include
bipolar disorder and major depression.
If the benefit sought on appeal remains
denied, the veteran and her
representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
Mark J. Swiatek
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).